behavioral health 2

HIPAA and Substance Abuse Disorder Treatment

Her cellphone was ringing again, but it was late. She’d let it go to voicemail a minute ago so this was the second try. Who could be calling? Kayla decided to answer. She heard her brother Michael on the phone saying he needed help. She hadn’t heard from him in two years. What could be going on? Kayla had all but given up on Michael after he lost his job, then his apartment, and finally, after an argument with her, he disappeared. She didn’t know where he went or if he was okay and she had been worried.

They talked for a while and Kayla learned her brother was seeing a doctor for help with a substance abuse problem. But he needed her support. He needed to talk and he wasn’t sure he could stay in treatment. Would she be willing to talk to his counselor?

The Addiction Public Health Crisis

Misuse and substance use disorders (SUDs) directly affect millions of Americans every year, causing motor vehicle crashes, crimes, injuries, reduced quality of life, impaired health, and far too many deaths, according to the Surgeon General’s Report on Alcohol, Drugs and Health (2016). Since that report was published, deaths from synthetic opioids have risen dramatically, nearly doubling.

The latest statistics about substance abuse in the United States shows:

  • 20.4 million people in the United States were diagnosed with SUD in 2019
  • Only 10.3 percent of people with SUD that year received SUD treatment
  • Nearly 71,000 people died of drug overdoses in 2019

HIPAA Balances Privacy with the Need for Communication

Support from family members and friends is key to helping people struggling with behavioral health, but their loved ones can’t help if they aren’t informed of the problem. The Office for Civil Rights (OCR) that enforces HIPAA at HHS provides guidance explaining when HIPAA permits health care providers and other covered entities to share a patient’s health information with loved ones and others involved in a patient’s care in these situations.

There are several pieces of guidance offered by OCR related to mental and behavioral health but the latest, geared toward the treatment providers, is the Guidance on Responding to an Opioid Overdose and it explains:

  • Providers can share information with an individual patient’s loved ones in certain emergency or dangerous situations, such as when the patient is in a crisis and incapacitated or is facing a serious and imminent threat of harm.
  • Patients with decision-making capacity retain their right to decide when and whether their information will be shared unless there is a serious and imminent threat of harm.
  • Patients’ personal representatives, who have authority under state law to make health care decisions for patients, may request and obtain information on behalf of patients.

Note: These rules and guidance relate to adult patients. Health privacy rules around minors can vary, and state law should be consulted.

HIPAA Helps Caregiving Connections

Three other pieces of guidance related to behavioral health including substance abuse treatment, are aimed at different audiences. All are easy to read, less than two pages:

For family and friends, OCR also has a decision tree to help answer the question about how much information you might obtain about an adult patient.

Compassion, Communication and Privacy

In the case of Michael and Kayla, at this stage, Michael has options. If he is capable of making his own decisions about his care, he can authorize Kayla to receive information by letting his caregivers know she is authorized to receive information. He could go further, and also allow her to make decisions on his behalf by naming her as his personal representative.

His counselors, physicians and others providing care have some flexibility and are able to include Kayla, or even other family and friends, in certain circumstances. Michael can let his caregivers know his preferences now. Later, even without an explicit authorization, caregivers are permitted to use their professional judgment about communicating with family and friends if necessary to prevent harm to the patient or others.

Learn the rules around communicating with family and friends in behavioral health treatment situations. Review the guidance, and if you have more questions, let us know.

The HIPAA E-Tool® makes compliance fast and easy. Get your free HIPAA Quick Start Kit, complete with a webcam privacy guard, HIPAA Hot Zone labels and a HIPAA checklist delivered directly to your office.

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Maggie Hales

Maggie Hales is a lawyer focusing on health information privacy and security. As CEO of ET&C Group LLC she advises health care providers and business associates in 36 states, Canada, Egypt, India and the EU, using The HIPAA E-Tool® to deliver up to date policies, forms and training on everything related to HIPAA compliance.

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